Pecoraro v. Balkonis

• Decision Date: 19 June 2008
• Docket Number: No. 1-05-3721.,No. 1-06-2967.,1-05-3721.,1-06-2967.
• Citation: 891 N.E.2d 484
• Parties: Joseph PECORARO, Plaintiff-Appellant, v. James W. BALKONIS, Edward J. Pudlo, Frank Biskner, Matthew M. Sprenzel, Kenneth J. Nordgren, William D. DeGironemo, and James Lapetina, Defendants-Appellees, Thomas Olsak and Fremd High School Hockey Club, Defendants. Joseph Pecoraro, Plaintiff-Appellee, v. Fremd High School Hockey Club, Defendant and Third-Party Plaintiff-Appellant, Thomas Olsak, Defendant and Third-Party Defendant.
• Court: United States Appellate Court of Illinois

891 N.E.2d 484

Joseph PECORARO, Plaintiff-Appellant, v. James W. BALKONIS, Edward J. Pudlo, Frank Biskner, Matthew M. Sprenzel, Kenneth J. Nordgren, William D. DeGironemo, and James Lapetina, Defendants-Appellees, Thomas Olsak and Fremd High School Hockey Club, Defendants.

Joseph Pecoraro, Plaintiff-Appellee, v. Fremd High School Hockey Club, Defendant and Third-Party Plaintiff-Appellant, Thomas Olsak, Defendant and Third-Party Defendant.

No. 1-05-3721.

No. 1-06-2967.

Appellate Court of Illinois, First District, Fourth Division.

June 19, 2008.

Norman J. Lerum, Norman J. Lerum, P.C., Chicago, IL and James M. Messineo, James Messineo & Assoc., Inverness, IL, for Plaintiff-Appellant and Plaintiff-Appellee.

Cassiday Schade LLP & Joseph A. Gianelli, Anthony J. Longo and Brian A. Schroeder, of counsel, Chicago, IL, for Defendants-Appellees and Appellant.

Justice MURPHY delivered the opinion of the court:

Plaintiff, Joseph Pecoraro, brought an action against defendants, James W. Balkonis, Edward J. Pudlo, Frank Biskner, Matthew M. Sprenzel, Kenneth J. Nordgren, William D. DeGironemo, and James Lapetina, members of the board of governors of the Fremd High School Hockey Club (individual board members), alleging that they were negligent when they failed to control Thomas Olsak, a 17-year-old hockey player, who assaulted plaintiff after plaintiff told him he could not play in a hockey game. The trial court dismissed count II on the basis that the individual board members did not authorize or ratify Olsak's conduct. In appeal No. 1-05-3721, plaintiff appeals the dismissal of the individual board members. In appeal No. 1-06-2967, the hockey club appeals the trial court's finding that a settlement between plaintiff and Olsak was in good faith.

I. BACKGROUND

A. Allegations of the Complaint

Plaintiff filed a suit against Olsak, his stepfather, Edward Pudlo, and the Fremd High School Hockey Club (hockey club) after a confrontation between plaintiff and Olsak left plaintiff severely injured. Plaintiff later amended his complaint to add the individual members of the board of governors of the hockey club.

Plaintiff's third amended complaint alleges as follows. On October 21, 1998, plaintiff was the head coach of the hockey club's varsity team. Olsak, a 17-year-old player, had deliberately missed two consecutive conditioning sessions earlier in the week, in violation of team practice rules, so he knew he would not be allowed to play in the game that night. However, he reported to the locker room and dressed in his hockey equipment for the purpose of triggering a confrontation with plaintiff. When plaintiff entered the locker room, a verbal confrontation ensued, and when plaintiff walked away, Olsak followed and threw a hockey stick at his back. As plaintiff turned around, Olsak struck him in the temple. Plaintiff stiffened and fell backwards, striking his head on the concrete floor. He suffered serious head injuries, was in a coma for several days, and sustained permanent brain damage, including the loss of certain sensory and cognitive functions.

The hockey club is an association that operates and manages a high-school hockey team. It is a private not-for-profit but is not organized as such under the laws of Illinois. It is organized under the Amateur Hockey Association Illinois, Inc. (AHAI), which is recognized by USA Hockey, the governing body of American Ice Hockey, as its sanctioned affiliate. USA Hockey promulgated rule books containing play rules and bylaws that must be followed by AHAI, member teams, and all participants. Similarly, AHAI promulgated policies, bylaws, and rules that must be followed by all Illinois leagues, member teams, and participants. The hockey club had an obligation, as an AHAI member team, to follow and enforce AHAI policies and bylaws as they applied to board members, coaches, and players, specifically, the "obligation to prevent physical abuse and fighting as required by AHAI policies."

Count I alleges assault and battery against Olsak, and count III alleges negligence against Pudlo, Olsak's stepfather. In count IV, plaintiff alleged that the hockey club was liable pursuant to the doctrine of respondeat superior because Olsak was a servant of the hockey club at the time of the incident. Count V alleges negligence against the individual board members under the Sports Volunteer Immunity Act (745 ILCS 80/1(a) (West 2004)).¹

Count II alleged negligence on the part of the hockey club and the individual board members. The hockey club and individual board members were obligated to observe, adopt, and follow the affiliate guidelines contained in article XIX of the AHAI rules and regulations. The hockey club and individual board members created several committees, including, for example, the player recruiting and retention committee, the coaching and staffing committee, and the disciplinary committee, to discharge the club's obligations under AHAI and league rules. The hockey club and its individual board members had control and authority over the players with respect to hockey activities and had the authority to provide direction, manage, enact rules and regulations, and suspend and discipline players. They had a duty to plaintiff to provide a safe environment within which to perform his coaching duties and to protect him from harm and abuse from the players during hockey-related activities.

The board knew of the following through Pudlo: (1) Olsak had received disciplinary action in school on March 4, 1998, for breaking a ceiling tile by hitting it with his hand, and (2) Olsak had received disciplinary action in school on March 5, 1998, for "destructive, dangerous, and disruptive behavior after repeated warnings" in the classroom. The board also knew, through Pudlo or other "individual defendant members of the Board," that in late February or early March 1998, Olsak was assessed a major penalty for assaulting and fighting a player on the opposing team during a game. It knew, through the individual board defendants, that: (1) Olsak received an inordinately high number of penalty minutes during the 1997-98 season for violating playing rules promulgated by USA Hockey, and (2) Olsak had made disrespectful and combative comments to plaintiff and other assistant coaches before the incident in question. Finally, the hockey club and the individual board defendants knew or should have known that Olsak had violent propensities and showed an inability to exercise self-discipline and anger management on several occasions before the incident.

The hockey club and individual board members breached their duty to plaintiff by failing to (1) define, implement, and execute policies relating to the enforcement of team rules that were to be followed by the players; (2) prevent Olsak from dressing in his hockey equipment on October 21, 1998; (3) define and implement policies and procedures that would have required Edward Pudlo, the manager, to serve as a liaison between the coached and players to prevent abusive contact toward coaches; (4) hold a disciplinary hearing and investigate the incidents of violent behavior demonstrated by Olsak to prevent further acts of violence, intimidation, or abuse; (5) discipline or suspend Olsak from hockey before October 21, 1998; (6) advise the AHAI of the problem of potential abuse posed by Olsak in violation of AHAI rules; and (7) draft and implement a constitution, bylaws, and rules and regulations for the players, parents, and coaches as required by AHAI rules and regulations. The third amended complaint alleges that the failure of the board and its individual members to effectively manage and control Olsak caused plaintiff's injuries.

B. Proceedings in the Trial Court

On October 9, 2001, defendants filed a motion to dismiss count II of the second amended complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2004)) based on the General Not For Profit Corporation Act of 1986 (General Not For Profit Act) (805 ILCS 105/108.70(a) (West 2004)) and the Sports Volunteer Immunity Act (745 ILCS 80/1(a) (West 2004)). Judge Bronstein denied the motion because at the time of the incident the hockey club was not registered with the state as a not-for-profit as required by the General Not-For-Profit Act. Defendants then filed an answer to the complaint.

In 2003, the club and the Fremd defendants filed a motion for summary judgment on count II of the complaint, arguing that (1) they did not have a duty to control Olsak's conduct because there was not a special relationship between them and Olsak, (2) they did not have a duty to protect plaintiff from Olsak's unforeseeable, criminal attack, and (3) AHAI rules did not create a duty owed by defendants to plaintiff. Plaintiff responded that there was a master-servant relationship between Olsak and the board and that they voluntarily assumed a duty. Judge Hogan stated that "there's no duty to the plaintiff on an individual basis. The only duty on behalf of these individuals stems from the relationship they had with respect to the board. * * * [I]f you get a verdict against the board, that doesn't mean that you get a verdict against these people individually." He denied the motion but noted that the individual board members could "only be found responsible based on what they did with respect to their board actions."

The case was assigned to Judge Elrod for trial on September 1, 2004, and in March 2005, the Fremd defendants filed a second motion for summary judgment on count II. Defendants again argued that the Sports Volunteer Immunity Act precluded count II. In light of this motion, plaintiff was permitted to file a third amended complaint, and defendants' motion was denied.

In June 2005, plaintiff filed a motion for partial summary judgment on counts II and IV as to the existence of a master-servant relationship between the board and Olsak, which the trial court denied. During the hearing...